5.  The applicant was born in 1967 and lives in Nizhnevartovsk.
6.  The applicant stood accused of the charge of false denunciation. He gave an undertaking to appear.
7.  On 3 April 2006 he was due to appear at a preliminary hearing before the Aleksandrovskiy District Court of the Tomsk Region. At 9.30 a.m. he called the District Court’s registry and informed it that he would only be available later in the day because both he and his counsel were involved in concurrent civil proceedings that morning.
8.  At 2 p.m. the District Court, sitting in a single-judge formation composed of Judge K., proceeded with the hearing in the applicant’s absence. The prosecutor asked the court that the applicant be remanded in custody because he had not shown up at the hearing.
9.  The District Court granted the prosecutor’s request, finding as follows:
“The hearing was fixed for 12 a.m. on 3 April 2006, of which the defendant Abashev and counsel Fedoseyeva had been notified in advance, on 6 March 2006, on the court’s premises.
However, the defendant Abashev did not appear at the hearing fixed for 12 a.m. on 3 April 2006. By a telephone message received at 9.25 a.m. on that day, he informed the court that his counsel Fedoseyeva was engaged in other proceedings; however, Abashev did not explain the reasons for his failure to appear or produce evidence showing that he had valid reasons for being absent. Nor did he ask that the court examine the charges in his absence.
Under these circumstances, there is every reason to believe that the defendant Abashev has fled from justice. Accordingly, it is necessary to vary the preventive measure from the undertaking to appear to a custodial measure.
In accordance with Article 99 of the Code of Criminal Procedure, the court takes into account the following elements: the defendant Abashev is charged with a minor offence; he has no criminal record; he is married and has a small child who lives in the town of Strezhevoy; according to him, he is unemployed; his health condition is unsatisfactory but does not prevent him from taking part in the trial.
Nevertheless, under these circumstances there is no reason to maintain the initial preventive measure and only a custodial measure would be appropriate for the defendant Abashev.”
10.  At 4 p.m. on the same day the applicant was taken into custody and placed in the temporary detention centre on the premises of the Aleksandrovskiy district police station. He started a hunger strike in protest. Counsel for the applicant filed an appeal against the detention order; she alleged that Judge K. had been biased against the applicant and that the detention order had not been justified.
11.  On 18 May 2006 the Tomsk Regional Court examined and rejected the appeal. Noting that the District Court judge had “attempted to establish Mr Abashev’s whereabouts and the reasons for his failure to appear”, it held that the judge had “reasonably arrived at the conclusion that the defendant had absconded”.
12.  In the meantime, on 14 April 2006 the Aleksandrovskiy District Court held that the applicant would be released if he paid bail of 50,000 Russian roubles (approximately 1,500 euros at the material time). Being unable immediately to pay the bail, the applicant remained in custody until 21 April 2006 when his counsel paid the required amount and the applicant was released.
13.  On 29 May 2006 the Tomsk Regional Court quashed the bail decision of 14 April 2006, finding as follows:
“It follows from the hearing record [of 3 April 2006] that on 3 April 2006, before the opening of the hearing, Mr Abashev had informed the court by telephone that his counsel was engaged in other proceedings ... Abashev has a permanent place of residence which is mentioned in the decision. This indicates that he had not fled from justice, had not evaded appearance at the hearing, and had not breached the conditions of the previously chosen preventive measure. The custodial measure was imposed on Mr Abashev in his absence and also in the absence of his lawyer ... that is, in breach of the requirements of Articles 47, 108 and 253 of the Code of Criminal Procedure.
In these circumstances, the Regional Court considers that the decision of 14 April 2006, which substituted bail for the custodial measure previously imposed – in breach of the law of criminal procedure – and maintained the custodial measure until such time as the bail had been posted, cannot be considered lawful or justified and must be quashed.”
14.  On 28 June 2006 the Aleksandrovskiy District Court ordered the Tomsk judicial department to return the full amount of bail to the applicant’s counsel.
15.  On 13 December 2006 the Presidium of the Tomsk Regional Court, by way of supervisory-review proceedings, quashed the detention order of 3 April 2006 and the appeal judgment of 18 May 2006, finding as follows:
“The Presidium considers that the judicial instances did not fully abide by the requirements of Articles 97, 99 and 110 of the Code of Criminal Procedure in giving decisions on the measure of restraint that was to be imposed on the defendant Mr Abashev.
It follows from the hearing record of 3 April 2006 that the Aleksandrovskiy District Court had been informed that the defendant and his counsel would be delayed on their way to court. Their belated appearance at the hearing cannot be said to constitute an attempt to flee from justice, which would have called for the imposition of a custodial measure.”
16.  On 10 January 2007 the Aleksandrovskiy District Court convicted the applicant as charged and gave him a suspended prison sentence of one and a half years with two years’ probation. On 20 August 2007 the Regional Court upheld the conviction on appeal.
17.  Relying on the Presidium’s decision of 13 December 2006, the applicant sued the Tomsk Regional Treasury and the Ministry of Finance for damage caused by his unlawful detention from 3 to 21 April 2006.
18.  On 23 May 2008 the Kirovskiy District Court of Tomsk rejected his claim, finding as follows:
“Under Article 1070 of the Civil Code, the damage caused by unlawful application of a custodial measure ... must be compensated for in accordance with the procedure established by law. In the context of criminal-law proceedings, this right is regulated in Chapter 18 ‘Rehabilitation’ (Articles 133-139) of the Code of Criminal Procedure ... It follows that the legislature granted the right to claim compensation in respect of non-pecuniary damage only to those who have been cleared of charges ...
However, according to the judgment of the Aleksandrovskiy District Court of 10 January 2007, as confirmed on appeal on 20 August 2007, Mr Abashev was found guilty ... Thus, since the plaintiff was not cleared of charges in accordance with the established criminal-law procedure, there are no legal grounds for satisfying his claim for compensation in respect of non-pecuniary damage.”
19.  On 29 July 2008 the Tomsk Regional Court upheld the judgment on appeal, relying on the following legal grounds:
“By virtue of Article 1070 § 2 of the Civil Code, the damage sustained in the framework of the administration of justice must be compensated for if the judge’s guilt has been established in a final criminal conviction. The plaintiff did not produce before the court a criminal conviction of Judge K. who had issued the arrest warrant.
The decision by the Presidium of the Tomsk Regional Court of 13 December 2006, to which the plaintiff refers, did not establish that the detention order had been unlawful but merely indicated that it had been unjustified.
The court cannot accept the plaintiff’s reliance on Article 1100 of the Civil Code to the effect that non-pecuniary damage must be compensated for irrespective of the tortfeasor’s fault if the damage was caused to an individual by unlawful application of a custodial measure because it is Article 1070 § 2 of the Civil Code that governs compensation for this type of damage sustained in the framework of the administration of justice.”